Restrictions adopted to support the implementation of a main operation are considered ancillary and are not reviewed separately. The Court of Justice has previously confirmed this - but in the recent cases Superleague and ISU, it decided to preclude the doctrine for restrictions by object. This approach does not make sense, legally or practically, and could neuter the doctrines if confined to effect analysis. Considering its essential nature from a practical perspective, the matter commands a revisit by the Court and comments in the interim, including possible readings that would preserve the core doctrine.
Dr Christian Bergqvist, University of Copenhagen, and GW Competition and Innovation Lab at The George Washington University. The paper is updated until primo February 2024. The author has no conflict of interest to declare and can be reached at <cbe@drbergqvist.dk>. This paper has benefitted from comments by Saskia King, David Fåhraeus, and Hanna Stakheyeva.
